INTIMIDATION

The Crimes (Domestic and Personnel Violence) Act 2007 (‘the Act’) was assented to on the 7th December 2012. The offence of intimidation which use to be under the Crimes Act 1900 (NSW) was re-enacted under s13 of the Act. The maximum penalty for breaching this offence is 5 years imprisonment on indictment or 2 years imprisonment in the Local Court.

In the author's opinion this is currently the most over utilised charge by the police and the most misapplied (see article relating to assault police). Regardless of the accused's intent (whether intentional or reckless) this offence is not complete unless the victim is actually intimidated. If the victim is not in fact intimidated, is not to say that no offence has been committed, as the accused may be guilty of the inchoate offence of 'attempt to intimidate' - see s13(5) of the Act. However, s13(4) has caused some confusion - as at first blush it would read as though the actus reus of the offence is not required. However, to the author's mind this is simply a reflection of the law as it relates to the application of force ie. fear is not an element of the offence (ie. an assault is an apprehension of immediate unlawful force - not fear of unlawful force). Hence, in the author's opinion whilst the prosecution are not required to prove that the victim actually feared any physical or mental harm the prosecution must still prove that the victim was intimidated in some way - otherwise the more appropriate charge would be 'attempt to intimidate' as per s13(5).

The relevant legislation and the explanatory notes to the legislation are set out below.

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13 Stalking or intimidation with intent to cause fear of physical or mental harm

(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.

(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

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Explanatory Notes

Explanatory note

This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to repeal and re-enact Part 15A of the Crimes Act 1900 with

modifications as a Principal Act. That Part deals with the issuing of apprehended